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Nov 18, 2015

Court Rules Against Church of Scientology in Bizarre Case

John Council

Texas LawyerNovember 17, 2015

Sometimes bizarre facts make for even stranger law.

And that's certainly the case for a recent Texas appellate court ruling that the Church of Scientology doesn't have a constitutional right to harass a woman by stalking her, sending her a sex toy at work and publishing allegations that she'd had a secret sex-change operation.

The background to the case, Church of Scientology International v. Rathbun, is as follows. Monique Rathbun is married to Marty Rathbun, a former member and official in the Church of Scientology. Rathbun alleges that the church relentlessly harassed her and her husband for three years, forcing them to move to a wooded lot outside of San Antonio. And after the Rathbuns moved, in 2013 she found a high-tech surveillance camera mounted to a tree aimed at their new property.

Rathburn filed a lawsuit against the church in a Comal County district court, alleging invasion of privacy and intentional infliction of emotional distress.

Rathbun, who has never been a member of the church, alleged, among other things, that Scientology operatives followed her as she drove to and from work; told her parents that her life was at risk as long as she was married to Marty Rathbun; sent a sex toy to her at her workplace; and published allegations on Scientology websites, including that she was a "sexual pervert" and a "man who has had a secret sex-change operation."

In response to her petition, the church filed a motion to dismiss Rathbun's claims under the Texas Citizens Participation Act [TCPA], also known as the Texas anti-SLAPP statute. The TCPA allows the trial court to dismiss tort suits filed against defendants who speak out on matters of public concern and in some cases allows them to recover their attorney fees.

The church argued that Rathbun's lawsuit was related to their rights of free speech, association and right to petition found in the First Amendment. Specifically they allege that Marty Rathbun engaged in the independent practice of Scientology outside of the church, which is forbidden. They also allege that the filming of the couple by the church's so-called Squirrel Busters, to document abuses of church doctrine, fell within the TCPA's definition of the exercise of free speech, right to petition or right of association.

After an extensive hearing, the trial court denied the church's motion to dismiss Rathbun's lawsuit and awarded her attorney fees. The church appealed the decision to Austin's Third Court of Appeals.

And in a Nov. 6 decision, the Third Court upheld the trial court's decision, dismissing the church's TCPA motion. The court found that the church failed to demonstrate how Rathbun's lawsuit implicates their First Amendment rights.

"Other than argue that the 'protest and film production' endeavors of the 'Squirrel Busters' are protected rights of free speech and thus within the scope of the TCPA, the Scientology defendants do not directly address the specific conduct Rathbun complains of, which includes following her while she went to and from work, shopping, out to dinner with friends, and walking her dog," wrote Justice Scott Field.

"Moreover, other than deny having done so, the Scientology defendants do not address Rathbun's allegations that they sent a sex toy to her at work and sent flowers with a 'romantic' message from her to a female co-worker."

The court also found that the record did not support the church's contention that Rathbun was a public figure who actively participated in a public controversy.

"The mere fact that she is married to Marty Rathbun and shares a residence with him does not automatically place her in the category of people who have been found to be public figures by virtue of their relationship to famous people," Field wrote.

However, the court reversed the trial court's order awarding Rathbun attorney fees, rejecting her contention that the church's TCPA motion was filed for the sole purpose of delaying the litigation of her tort case.

Leslie Hyman, a partner in San Antonio's Pulman, Cappuccio, Pullen, Benson & Jones who represents Rathbun on appeal, is pleased with the decision. She notes that the Third Court took nearly a year to decide the case and did a thorough job of examining the church's TCPA motion.

"One of the things I was concerned about was the argument [the church was] making that as long as you filmed yourself doing stuff, that made what you were doing protected by the First Amendment. That would suggest that if I had somebody with a camera phone filming me, I could smash your car," Hyman said.

"It comes back to what we were complaining about. We were not complaining about protected speech or protected assembly or protected petitioning," Hyman said. "We were complaining about her being followed to and from work, followed to restaurants and while shopping, and followed while walking the dog."

Tom Leatherbury, a partner in Vinson & Elkins who represents the church on appeal, did not return a call for comment.

Elliott Cappuccio, who represents Rathbun before the trial court, said that her case is the third one that his firm has handled against the church.

"When you talk about bizarre, you have no idea," Cappuccio said.

"They had suffered 300 days of the church renting homes next to theirs," Cappuccio said of the Rathbuns. "They would watch and see when her husband left town and bother her. Imagine they do that so long that you have to move. And then you move to another property, and there are surveillance cameras pointing your way. Imagine thinking you're never going to get away from these people.

"My client wants her day before a jury," Cappuccio said. "And we want a Texas jury to tell the church that this type of behavior is not going to be tolerated."

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